People v. Miron CA1/3 ( 2020 )

Filed 12/23/20 P. v. Miron CA1/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
A155462
v.
ANTHONY BENJAMIN MIRON, (San Mateo County
Super. Ct. No. 17NF009738A)
Defendant and Appellant.
Anthony Benjamin Miron was convicted by a jury of multiple counts of
committing a lewd act upon a child under 14 years old. He contends the
court improperly admitted evidence of his conviction for a prior sex offense.
He also argues his trial counsel was ineffective for failing to object to
prosecution questioning of two witnesses and to a purported misstatement of
law in the prosecutor’s closing argument. We disagree and affirm.
BACKGROUND
In July 2018, Miron was charged with three counts of lewd and
lascivious conduct upon a child (Pen. Code, § 288, subd. (a)). For each count,
it was alleged that Miron had been convicted of a prior sex offense (Pen.
Code, § 1203.066, subd. (a)(5)). Two prior serious felonies, two prior strikes,
and three prior prison terms were also alleged.
Sisters Mariel and M. were responsible for doing their own laundry,
and they did it together at a laundromat near their home. One afternoon in
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July 2017, M., who was then 11 years old, and Mariel, who was a few years
M.’s senior, went to do their laundry. Both M. and Mariel testified about that
day’s events at the laundromat.
M. stated that after placing their laundry in the dryer, she sat down on
a bench inside the laundromat while Mariel went to visit the store next door.
While M. was sitting on the bench, Miron, a man she did not know, sat next
to her and started talking. Miron asked M. her name, age, and whether she
had a boyfriend. She answered the questions and told him she was 11, which
she later regretted. Miron also said something about “getting pregnant” but
M. could not remember it all. She understood the comment had something to
do with sex, and it made her uncomfortable. Miron then kissed M.’s cheek
“once or twice,” which added to her discomfort. She scooted away from Miron
and left the bench when, minutes later, Mariel returned to the laundromat.
M. joined her sister, who was on her phone and checking the laundry, and
told her what happened. Miron continued to follow and watch M. in the
laundromat. Mariel described M. as “scared and confused” and said M. told
her that the man had twice kissed her on the cheek. The girls did not
immediately leave the laundromat. M. wanted to, but she did not want to
leave her sister alone with Miron out of fear he would do something to her.
They left when their laundry was done. On the way out, M. saw Miron at the
door and “started speed walking out” of the laundromat.
At home, the girls told their mother what had happened. M. felt
uncomfortable because she did not like what occurred and did not want to
talk about it. M.’s mother, who also testified, said M. “cr[ied] hysterically”
and “her face looked like she was panicked” when they spoke. Eventually,
M.’s mother persuaded her to file a report with the police.
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At the police station, M. spoke with Officer Jeffrey Lee of the South San
Francisco Police Department, who also testified at trial. Video of her
interview was played to the jury. In the interview M. told Officer Lee that
she was sitting on the bench when Miron came and sat next to her. Miron
asked her age and if she had a boyfriend, and made a comment that he would
do something but she would get pregnant. M. understood the comment to be
referring to intercourse. M. said Miron touched her leg, brushing her upper
thigh with his finger and then moved towards her knee. M. reported that
Miron kissed her cheek twice despite her attempt to back away from him.
The touching made her feel awkward and scared. After the kisses, Miron
stopped talking and M. got up to look for her sister. After she walked over to
her sister, who was talking on her phone, Miron followed and stood next to
them. As they finished their laundry, Miron watched them from the bench.
When they left, Miron got up to open the door for them and M. ran home.
Days later, Officer Lee reviewed video from the laundromat’s
surveillance system. At trial, Officer Lee described the video and clips were
played for the jury. The video showed the sisters entered the laundromat
around 4:18 p.m. After some time, Miron and an adult female companion
walked in and stood around for a while. Shortly after 4:30 p.m., Miron’s
companion left, and so did Mariel. Miron walked over to the bench at the
front of the laundromat and sat down next to M. The two appeared to talk.
M. stood up, walked to the rear of the laundromat, and then returned to the
bench. After some time, Mariel came back. Miron tapped M.’s shoulder and
touched her cheek with his right hand. As he did this, he placed his left hand
on M.’s right leg. Miron then grabbed M.’s right hand, brought her hand to
his mouth, and kissed it. Minutes later, Miron looked around, scooted toward
M., leaned in, touched her face and kissed M. on the cheek. Then, he kissed
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her a second time. After that, M. got up and moved to the rear of the
laundromat next to her sister who was standing by a folding table and
talking on her phone. Miron approached the girls and stood next to them for
a while before leaving the building. He lingered outside for several minutes
but eventually re-entered the laundromat and stood near the entrance.
Miron opened the door for the girls as they left and touched M.’s shoulder on
her way out.
At the conclusion of the prosecution testimony, the jury was read a
stipulation that Miron had been previously convicted of a sex offense.
Miron testified on his own behalf, and stated on the day M. and Mariel
visited the laundromat, he was there with his fiancée doing laundry. He said
he “looked pretty rough,” and M. approached him, commented that she was a
princess and he was a frog, and invited him to kiss her hand so he could
become a prince. He thought she was playing around with him. Miron said
he did not know M.’s age but knew she was a minor. He disputed that M.
ever told him she was 11 years old and said she never told him her age. He
testified, “You really want to know the truth? [¶] . . . [¶] She told me she
was six years old.” He admitted to kissing M.’s hand knowing she was young.
When asked if her princess and frog comments led him to kiss her hand, he
responded, “I’ve seen a video. I’m pretty much—I can clear that up as well.”
He explained, “I reached over, and [M.] had raised her hand so I can touch
her hand and play kiss it. It was a playing—it was a playing at the time.”
Later, he explained, “I didn’t rush, all right, right out and—grab the hand
and kiss her. She was playing with me. You can see the video. She reached
to my hand to kiss it, and she met my hand half and half.” When asked if
there was sexual intent behind the kiss, Miron responded, “I have three
daughters. I have one son. Two marriages. I don’t think that was very
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sexual intent whatsoever, no.” He added, “I believe that . . . I’m not aroused
of any kissing or touching as I am accused . . . of.” He added that he was
attracted to adult females. Miron again denied kissing M.’s hand out of
pleasure and emphasized that M. “came to play.” Miron also acknowledged
he kissed M. twice on the cheek but said he did not act out of lust. When
asked if M. had asked for those kisses, he responded, “Let’s just put it this
way. . . . [S]he said the hand, then she . . . implied, okay, the cheek, okay.”
Miron admitted he was previously convicted of assault with intent to
commit rape but distinguished the prior offense because it involved an adult
woman. He also admitted to three other prior convictions.
On rebuttal, Officer Lee testified about his interview with Miron after
arresting him The jury watched the video of the interview. In the interview,
Miron told Officer Lee he was at the laundromat around 2:00 or 3:00 p.m. but
not at 4:00 p.m. He repeatedly denied he ever sat on the bench talking to a
young girl. Eventually, he acknowledged there was a young girl accompanied
by her mother who sat next to him on the bench. He believed the girl was 12
to 15 years old. Miron denied he kissed the girl or touched her in any way.
He said he did not pay any attention to the girl. Officer Lee told Miron there
was surveillance video showing he sat on the bench next to a young girl and
kissed the girl’s hand and twice kissed her cheek. The officer told Miron he
had an opportunity to be truthful. Miron responded, “[L]et me think about
this.” When Officer Lee again asked Miron about kissing the girl, Miron
asked if it was the girl’s birthday. Once again, he denied kissing the girl. He
also denied talking with the girl about having a boyfriend. He claimed he
could not remember what happened, then admitted he had not been telling
Officer Lee the truth. He said he may have whispered something in the girl’s
ear but did not remember kissing her.
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The jury found Miron guilty on all counts. The trial court found his
prior strike allegations to be true. Miron was sentenced to state prison for 22
years. This appeal followed.
DISCUSSION
A. Prior Sex Offense Evidence
Miron argues the trial court abused its discretion when pursuant to
Evidence Code section 11081 it admitted his 1984 conviction for assault with
intent to commit rape. He further contends the trial court erroneously failed
to conduct a balancing test on the record pursuant to section 352. On all
points, we disagree.
Pursuant to section 1108, the People moved in limine to admit evidence
of Miron’s 1984 conviction for assault with intent to commit rape. Miron
opposed, and the motion was submitted. Later that day, in the course of
ruling on other pretrial issues, the court stated, “Returning to the 1108
motion, I had a chance to review that. And, at this point, I’m inclined to
allow it.”
During trial, the following stipulation was read to the jury: “On August
17th, 1984, in San Francisco County, [Miron] was convicted of a violation of
assault with intent to commit rape of an adult female, said offense having
occurred on June 7th, 1984. He was sentenced on October 10th, 1984.”
Miron also admitted the conviction during cross-examination.
Pursuant to CALCRIM No. 1191A, the jury was instructed as follows:
“The People presented evidence that the defendant committed the crime of
assault with intent to commit rape of an adult female which was not charged
in this case. This crime is defined for you in these instructions. You may
1 All statutory references are to the Evidence Code unless otherwise
stated.
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consider this evidence only if the People have proved by a preponderance of
the evidence that the Defendant, in fact, committed the uncharged offense.
[¶] Proof by a preponderance of the evidence is a different burden of proof
from proof beyond a reasonable doubt. A fact is proved by a preponderance of
the evidence if you conclude that it is more likely than not that the fact is
true. [¶] If the People have not met this burden of proof, you must disregard
this evidence entirely. If you decide that the defendant committed the
uncharged offense, you may but are not required to conclude from that
evidence that the Defendant was disposed or inclined to commit sexual
offenses and based on that decision also conclude that the Defendant was
likely to commit and did commit a lewd or lascivious act on a child under the
age of 14 years as charged here. [¶] If you conclude that the defendant
committed the uncharged offense, that conclusion is only one factor to
consider along with all the other evidence. It is not sufficient by itself to
prove that the Defendant is guilty of committing a lewd or lascivious act on a
child under the age of 14 years. The People must still prove the charges
beyond a reasonable doubt. Do not consider this evidence for any other
purpose.”
Evidence the defendant committed a prior crime is generally
inadmissible to prove the defendant likely committed a later crime. (§ 1101,
subd. (a).)2 However, section 1108, subdivision (a), provides an exception to
this rule and allows admission of evidence of a prior sex offense when a
defendant is charged with a sex crime. (§ 1108, subd. (a).) To prevent unfair
misuse of such propensity evidence, the trial court must analyze whether it is
2Section 1101 allows the introduction of prior crime evidence when
relevant to prove some fact such as motive, opportunity, intent or the lack of
consent. (§ 1101, subd. (b).)
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admissible under section 352. (Ibid.; People v. Falsetta (1999) 21 Cal.4th 903,
916-918, 920.)
Evidence of a prior sex offense should be excluded under section 352 “if
its probative value is substantially outweighed by the probability that its
admission will (a) necessitate undue consumption of time or (b) create
substantial danger of undue prejudice, of confusing the issues, or of
misleading the jury.” (§ 352.) We review a trial court’s decision to admit
evidence pursuant to section 1108 and its application of section 352 for an
abuse of discretion. (People v. Hollie (2010) 180 Cal.App.4th 1262, 1274.)
“We will not overturn or disturb a trial court’s exercise of its discretion under
section 352 in the absence of manifest abuse, upon a finding that its decision
was palpably arbitrary, capricious and patently absurd.” (People v. Jennings
(2000) 81 Cal.App.4th 1301, 1314.)
Here, the trial court did not abuse its discretion when it admitted
Miron’s prior sex offense. The Legislature enacted section 1108 because it
found “that persons who commit sex offenses often have a propensity to
commit sex crimes against more than one victim.” (People v. Escudero (2010)
183 Cal.App.4th 302, 305-306 (Escudero).) “With the enactment of section
1108, the Legislature ‘declared that the willingness to commit a sexual
offense is not common to most individuals; thus, evidence of any prior sexual
offenses is particularly probative and necessary for determining the
credibility of the witness.’ ” (People v. Soto (1998) 64 Cal.App.4th 966, 983
(Soto); Escudero, supra, 183 Cal.App.4th at p. 306 [evidence of prior sex
offenses is presumed to be admissible to assist trier of fact in evaluating the
credibility of the victim and the defendant].) Thus, evidence of Miron’s prior
sex offense is considered probative of his propensity to commit lewd acts upon
M. for sexual gratification and could be reasonably admitted.
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But Miron says balancing the section 352 considerations should have
resulted in exclusion of the prior sex offense. He argues it had weak
probative value, was highly inflammatory, and too remote in time, and cites
several cases to support his assertions. We disagree, and the cases cited by
Miron are factually inapposite and do not compel a contrary conclusion.
We are not persuaded that the prior sex offense had little probative
value based on the differences between the victim (an adult woman) and the
circumstances surrounding it and the charged offenses against M. “The
charged and uncharged crimes need not be sufficiently similar that evidence
of the latter would be admissible under Evidence Code section 1101,
otherwise Evidence Code section 1108 would serve no purpose. It is enough
the charged and uncharged offenses are sex offenses as defined in section
1108.” (People v. Frazier (2001) 89 Cal.App.4th 30, 40-41, 43 [no abuse of
discretion to admit evidence of the defendant’s uncharged acts of sodomy and
forcible oral copulation of his six-year-old cousin even though they were
different from the charged act of touching the bare buttocks of his nine-year-
old niece].) “ ‘Many sex offenders are not “specialists,” and commit a variety
of offenses which differ in specific character.’ ” (Soto, supra, 64 Cal.App.4th
at p. 984.) Here, since the prior sex offense evidence involved another female
and also showed Miron possessed deviant sexual urges, it was similar enough
to the charged offense to have probative value. Moreover, while lack of
similarity is relevant, “that factor is not dispositive.” (People v. Merriman
(2014) 60 Cal.4th 1, 42.) The differences between the two cases here,
although relevant to the exercise of discretion under section 352, are not
dispositive of whether the evidence meets the requirements for admissibility
under section 1108.
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We are also not convinced that evidence of the prior sex offense was too
inflammatory. To apply this factor, we consider “whether the evidence
inflames the jurors’ emotions, motivating them to use the information, not to
evaluate logically the point upon which it is relevant, but to reward or punish
the defense because of the jurors’ emotional reaction.” (People v. Valdez
(2012) 55 Cal.4th 82, 145.) While the evidence of the prior sex offense was
harmful to Miron, there is no reason to believe it confused the jury or caused
them to decide the case on an improper basis. Only the dates and fact of the
conviction and specification of the charged offense were presented. There
was no detail about Miron’s conduct that could have elicited a visceral or
emotional response from the jury. Further, the jurors were instructed that
they “may but [were] not required” to conclude Miron was disposed to commit
sexual offenses and that drawing such a conclusion was “only one factor to
consider with all the other evidence.” In light of the plain presentation of the
evidence and the instruction, we do not consider the evidence highly
inflammatory.
Nor was the prior sex offense too remote. “ ‘No specific time limits have
been established for determining when an uncharged offense is so remote as
to be inadmissible.’ ” (People v. Robertson (2012) 208 Cal.App.4th 965, 992.)
“Numerous cases have upheld admission pursuant to . . . section 1108 of prior
sexual crimes that occurred decades before the current offenses.” (Id. at pp.
992-993 [no error in admitting prior sexual assault conviction from more than
30 years ago]; People v. Branch (2001) 91 Cal.App.4th 274, 284 [upholding
admission of a sex crime committed 30 years before charged offense].)
Accordingly, the 34-year span between the prior sex offense and the charged
offense did not render it inadmissible.
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The evidence was not unduly prejudicial. Under section 352, evidence
should be excluded where its probative value is “substantially outweighed” by
the “probability” that its admission will create a “substantial” danger of
“undue” prejudice. (§ 352.) “To determine whether section 1108 evidence is
admissible, trial courts must engage in a ‘careful weighing process’ under
section 352. [Citation.] ‘Rather than admit or exclude every sex offense a
defendant commits, trial judges must consider such factors as its nature,
relevance, and possible remoteness, the degree of certainty of its commission
and the likelihood of confusing, misleading, or distracting the jurors from
their main inquiry, its similarity to the charged offense, its likely prejudicial
impact on the jurors, the burden on the defendant in defending against the
uncharged offense, and the availability of less prejudicial alternatives to its
outright admission, such as admitting some but not all of the defendant’s
other sex offenses, or excluding irrelevant though inflammatory details
surrounding the offense.’ ” (People v. Daveggio and Michaud (2018) 4 Cal.5th
790, 823-824).) These factors could reasonably be weighed here in favor of
admission. (See Escudero, supra, 183 Cal.App.4th at pp. 306, 312-313
[admitting evidence of defendant’s sexual assaults against two adult women
at trial in which defendant was charged with committing lewd acts on a
seven year old and rejecting argument that evidence of the sexual assaults
was unduly prejudicial].)
Miron also argues the court erred “because it failed to state the
evidentiary purpose of the prior act and failed to conduct a balancing test on
the record.” It is true the trial court gave no detailed explanation for
admission of the prior sex offense, nor did it discuss how it weighed the
section 352 factors. But the absence of such an explanation is not error.
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Miron cites no authority that requires a trial court to state “the
evidentiary purpose of a prior sex offense” or the “basis regarding the
admissibility of [a defendant’s prior] offense.” It is clear that the prosecutor
sought to admit the prior sex offense to show Miron’s propensity to commit
such crimes. Based on the admission of the evidence pursuant to section
1108, it is equally clear that Miron’s propensity was the purpose for which it
was admitted, and the court’s instructions to the jury stated as much.
A trial court is not required to “ ‘expressly weigh prejudice against
probative value or even expressly state that it has done so, if the record as a
whole shows . . . the court was aware of and performed its balancing function
under Evidence Code section 352.’ ” (People v. Lewis (2009) 46 Cal.4th 1255,
1285; People v. Silveria (2020) 10 Cal.5th 195, 275.) The record demonstrates
the court’s awareness. The prosecutor’s motion in limine presented the legal
standard for admission of the prior sex offense and referenced section 352.
The motion expressly stated that the court “must engage in a careful
weighing process under section 352,” and over the course of three pages of
briefing advocated how that weighing should occur. The parties argued the
issue and invoked section 352 considerations throughout. Even Miron
acknowledges, “the defense and prosecution both argued why the factors of
remoteness in time and factual dissimilarities either rendered the 1984
conviction inadmissible or admissible. Furthermore, both sides used cases
that conducted a section 352 analysis of the admissibility of prior acts under
section 1108, to support their arguments.” On this record, we presume the
court understood its responsibilities under section 352 to balance the
proffered evidence’s probative value against its prejudicial effect. We also
presume the court weighed those factors before it decided to admit the prior
conviction.
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In any event, even if the prior sex offense evidence was erroneously
admitted for whatever reason, we would conclude the error was harmless.
(People v. Watson (1956) 46 Cal.2d 818, 836.) Even without the prior sex
offense, the evidence of Miron’s guilt was overwhelming. M.’s testimony that
Miron said something about “getting pregnant” and that she understood the
comments to refer to intercourse revealed the sexual nature of Miron’s
conduct. As M.’s police station interview and surveillance video showed, the
verbal exchange between the two was followed by Miron intimately touching
M. He caressed her cheek, brushed her leg from her upper thigh to knee,
took M.’s hand to his mouth and kissed it. He gave M. two kisses on her
cheek and looked around the laundromat before doing so. Further, when he
was examined about his actions at trial, the jury could reasonably infer from
his evasiveness and responses that Miron was aware his behavior was taboo
and not innocent or harmless game playing. In his post-arrest interview with
Officer Lee, Miron first denied being in the laundromat at the time of the
incident and repeatedly denied that he touched or kissed M. It was only after
he was told of the existence of surveillance video that he reconsidered his
answers and acknowledged his presence in the laundromat while M. was
there. At trial, he admitted touching and kissing M. The jury could
reasonably reject Miron’s description of a game the two were playing,
especially after viewing his post-arrest interview. There was ample evidence
to support the jury’s finding that Miron acted with sexual intent. It is not
reasonably probable that Miron would have obtained a more favorable result
if the jury did not have evidence of his prior sex offense.
B. Ineffective Assistance of Counsel
Under the Sixth Amendment, all criminal defendants have a
constitutional right to competent legal representation. (Strickland v.
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Washington (1984) 466 U.S. 668, 687.) To establish ineffective assistance of
counsel, a defendant must show that (1) counsel’s representation fell below
an objective standard of reasonableness under prevailing professional norms,
and (2) counsel’s deficient performance was prejudicial. (People v. Brown
(2014) 59 Cal.4th 86, 109.) “Prejudice exists where there is a reasonable
probability that, but for counsel’s errors, the result of the proceeding would
have been different.” (People v. Benavides (2005) 35 Cal.4th 69, 93.) A “ ‘
“reasonable probability is defined as one that undermines confidence in the
verdict.” ’ ” (People v. Carrasco (2014) 59 Cal.4th 924, 982 (Carrasco).)
Miron contends that he was deprived of his right to effective assistance
of counsel because he was prejudiced when his trial counsel did not object at
two points during trial. First, he asserts trial counsel should have objected to
the prosecutor’s questions to M. and her mother regarding their feelings
surrounding the events at the laundromat. He says their responses were
barely relevant and “extremely inflammatory.” Second, Miron states his
counsel should have objected to the prosecutor’s assertion in closing
argument that Miron’s prior non-sex offense convictions which were admitted
for impeachment could be used to establish the element of intent for the
charged offenses. He says this misstatement of law gave the jury additional
and improper evidence to use in evaluating Miron’s mental state.
We reject both contentions. Here, we “ ‘need not determine whether
counsel’s performance was deficient before examining the prejudice suffered
by the defendant as a result of the alleged deficiencies. . . . If it is easier to
dispose of an ineffectiveness claim on the ground of lack of sufficient
prejudice, . . . that course should be followed.’ ” (Carrasco, supra, 59 Cal.4th
at p. 982.) Even if we assume without deciding counsel was deficient for the
reasons raised, Miron cannot show prejudice on this record. Had trial
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counsel raised these objections and the court sustained them, the result
would have been no different for the same reasons discussed above in our
harmless error analysis of the admission of Miron’s prior sex offense.
DISPOSITION
The judgment is affirmed.
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_________________________
Siggins, P.J.
WE CONCUR:
_________________________
Petrou, J.
_________________________
Jackson, J.
People v. Miron, A155462
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